May 14, 1969 – Supreme Court Justice Abe Fortas, Under Threat of Impeachment, Submitted Resignation to Chief Justice Earl Warren

Abraham Fortas was born on June 19, 1910 in Memphis, Tennessee. He graduated from Rhodes College and Yale Law School, becoming the youngest law student at 20 years old. According to the website Oyez, “His work ethic caught the eye of William O. Douglas, who was a professor there at the time, and Douglas quickly took Fortas as his protégée. Fortas graduated in 1933 second in his class.

Fortas then became a law professor at Yale. He also served as an advisor to a number of US government agencies. Fortas worked at the Department of the Interior under President Franklin D. Roosevelt, and was appointed by President Harry S. Truman to delegations that helped set up the United Nations in 1945.

Fortas represented Lyndon Johnson in a primary electoral dispute, forming close ties with LBJ. He also represented Clarence Earl Gideon in what became a landmark Supreme Court case, decision Gideon v. Wainwright (372 U.S. 335, 1963) holding that a criminal defendant who cannot afford to hire a lawyer must be provided one at no cost.

Fortas was nominated by President Johnson to the Supreme Court in 1965, and was sworn in as an Associate Justice on October 3, 1965. The seat Fortas occupied on the Court had come to be informally known as the “Jewish seat,” as his three immediate predecessors—Goldberg, plus Felix Frankfurter and Benjamin Cardozo before him—were also Jewish.

On the court, Fortas promoted civil liberties, upholding, inter alia, the the Voting Rights Act of 1965, and the invalidation of the poll tax.

In 1968, after Chief Justice Earl Warren’s resignation, Johnson nominated Fortas for his position. Southerners, who had rejoiced over Warren’s retirement, were appalled at the prospect of any Chief Justice who might continue Warren’s policies, which they saw as corroding the [white supremacist] fabric of society.

Abe Fortas with LBJ, 1965, via Wikipedia

Critics charged that Fortas’ closeness to Johnson violated the separation of powers. Kent Courtney, national chairman of the Conservative Society of America, charged that “Justice Fortas ruled with the Communists, with Communist individuals on behalf of the Communist conspiracy, and voted against the Congress of the United States.”

Dirt diggers brought to light that Fortas had accepted money from friends and clients for teaching a nine-week summer seminar at American University Law School. Fortas received $15,000 for the seminar, roughly 40 percent of his regular salary. Previous teachers had been paid $2,000. Fortas was also compensated for developing teaching materials. Private donations solicited by Paul Porter, Fortas’s old law partner, paid for his salary. The donors consisted of two directors for Braniff Airways, two department store magnets, along with the chairman of the New York Stock Exchange. Fortas now had a possible conflict-of-interest problem, since it was inevitable that issues important to those entities would come before the Court.

In May 1969, Life magazine cataloged Fortas’s tangled relations with financier Louis Wolfson, who had been convicted of stock manipulation. Further investigation by the Justice Department revealed Fortas had entered into a $20,000-a-year lifetime arrangement to advise the Wolfson Family Foundation.

As the National Endowment of the Humanities (NEH) observed, “the appearance of impropriety overwhelmed the fact Fortas had done nothing ethically wrong. There was no evidence to support the criminal charges either. Nevertheless, Fortas decided to resign.”

Associate Justice Abe Fortas

Fortas resigned from the bench in 1969 but denied any wrongdoing. He founded another firm and practiced law until his death in 1982.

Now newly elected President Richard Nixon had the opportunity to settle a campaign debt with the vacancy. NEH reports, in exchange for delivering delegates, he swore to Thurmond and other Southern congressmen that he would appoint a strict Constitutionalist and a Southerner to the Supreme Court.
Nixon’s first two nominees, Judge Carswell, and Judge Haynsworth, were rejected.

Nixon abandoned his quest to appoint a Southerner and nominated Harry Blackmun, a conservative appellate judge from Minnesota, in April 1970. Blackmun’s hearing lasted three hours and five minutes. The Senate confirmed his appointment 94-0.

April 16, 1947 – Deadliest Industrial Accident in US History Occurred in the Port of Texas City, Texas, Drawing 1st Class Action Lawsuit Against US Government

On April 16, 1947, in the Port of Texas City, Texas, at Galveston Bay, a mid-morning fire started on board the French-registered vessel SS Grandcamp (docked in the port) and detonated her cargo of about 2,300 tons of ammonium nitrate intended for fertilizer. This started a chain reaction of fires and explosions in other ships and nearby oil-storage facilities, ultimately killing at least 581 people, including all but one member of the Texas City fire department.

More than 5,000 people were injured, over 500 homes were destroyed and hundreds damaged, and some 2,000 were left homeless. The seaport was destroyed, and many businesses were flattened or burned. Over 1,100 vehicles were damaged and 362 freight cars were obliterated; the property damage was estimated at $100 million (equivalent to $1.2 billion in 2020).

The disaster drew the first class action lawsuit against the United States government on behalf of 8,485 plaintiffs, under the recently enacted 1946 Federal Tort Claims Act (FTCA).

On April 13, 1950, a Texas District Court found the United States responsible for a litany of negligent acts of omission and commission by 168 named agencies and their representatives, in the manufacture, packaging, and labeling of ammonium nitrate. This was further compounded by errors in transport, storage, loading, fire prevention, and fire suppression, all of which led to the explosions and the subsequent carnage.

On June 10, 1952, the U.S. Fifth Circuit Court of Appeals overturned this decision (197 F.2d 771), finding that the claim did not meet the requirements of the FTCA, stating that “This Act does not subject the Government to a previously unrecognized type of obligation.” It noted:

The Act does not apply to “any claim * * * based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” Sec. 2680(a). This is a “highly important exception”. H. Report 1287, 79th Cong., 1st Session, 1945, pp. 5 & 6. As Judge Woodrough, speaking for the Eighth Circuit, pointed out in Coates v. United States, 181 F.2d 816, 817, 818, 19 A.L.R.2d 840, “the term `discretionary function or duty’ has a long history of precise meaning in a legal sense”. It was meant “to continue to exclude judicial authority from interference with lawful legislative and executive action”. See also 56 Yale Law Journal, p. 545.”

The Supreme Court granted certiorari “because the case presented an important problem of federal statutory interpretation.” In Dalehite et al. v. United States (346 U.S. 15, June 8, 1953), a 4-3 opinion, it accepted the Circuit Court’s reasoning.

Justice Stanley Forman Reed, writing for the Court, observed that no individual acts of negligence could be shown. And the legislative history of the FTCA indicated that while Congress desired to waive the Government’s immunity from actions for injuries to person and property occasioned by the tortious conduct of its agents acting within their scope of business, it was not contemplated that the Government should be subject to liability arising from acts of a governmental nature or function. 

Section 2680(a), Justice Reed averred based on the legislative history, was intended to preclude any possibility that the bill might be construed to authorize suit for damages against the Government growing out of authorized activity, such as a flood control or irrigation project, where no negligence on the part of any government agent is shown, and the only ground for the suit is the contention that the same conduct by a private individual would be tortious.

Justice Stanley Forman Reed

The Court noted that the District Court had no jurisdiction under the federal statute to find the U.S. government liable for “negligent planning decisions” which were properly delegated to various departments and agencies. That is, the FTCA clearly exempts “failure to exercise or perform a discretionary function or duty,” and the Court found that all of the alleged acts in this case were discretionary in nature:

Petitioners rely on the word ‘wrongful’ though as showing that something in addition to negligence is covered. This argument, as we have pointed out, does not override the fact that the Act does require some brand of misfeasance or nonfeasance, and so could not extend to liability without fault; in addition, the legislative history of the word indicates clearly that it was not added to the jurisdictional grant with any overtones of the absolute liability theory. Rather, Committee discussion indicates that it had a much narrower inspiration: ‘trespasses’ which might not be considered strictly negligent. Hearings before a Subcommittee of the Senate Committee on the Judiciary on S. 2690, 76th Cong., 3d Sess., 43—44. Had an absolute liability theory been intended to have been injected into the Act, much more suitable models could have been found. . . .

In short, the Court concluded, the alleged ‘negligence’ does not subject the Government to liability. The decisions implicated in subsequent disastrous events were all responsibly made at a planning rather than operational level and involved considerations more or less important to the practicability of the Government’s fertilizer program. The Court affirmed the Circuit Court’s findings.

The Dalehite decision was eventually “appealed” to Congress, where relief was granted by means of legislation (Public Law 378, 69 Stat. 707, 1955). When the last claim had been processed in 1957, 1,394 awards totaling nearly $17 million had been made.

February 8, 1825 – Madison Advises Jefferson to Consider “The Federalist” as a Law School Text

On this day in history, James Madison wrote to Thomas Jefferson commenting on Jefferson’s proposal for a text book for the new law school at University of Virginia. Notably, Madison observed:

The ‘Federalist’ may fairly enough be regarded as the most authentic exposition of the text of the federal Constitution, as understood by the Body which prepared & the Authorities which accepted it. Yet it did not foresee all the misconstructions which have occurred; nor prevent some that it did foresee. And what equally deserves remark, neither of the great rival parties have acquiesced in all its Comments. It may nevertheless be admissible as a School book, if any will be that goes so much into detail. It has been actually admitted into two Universities, if not more, those of Harvard & Rh. Island; but probably at the choice of the Professors, without an injunction from the superior authority.”

You can read the entire letter here.

James Madison

January 29, 1783 – Connecticut 1st State to Pass a General Colonial Copyright Law

On January 29, 1783, Connecticut became the first state to pass a general colonial copyright law, 1783 Conn. Acts 133, entitled “An Act for the Encouragement of Literature and Genius.”

An online Connecticut history site explains that in the colonies, authors worried about protecting their rights:

It was not uncommon for a printer, who had been paid by the author to print a set number of copies, to produce extras to sell on the side. Also, another printer might copy and sell the author’s book without permission.”

At the time, patents were the only form of protection for an author’s work and legislatures generally granted these private bills for relatively short periods.

Ultimately, it was John Ledyard who succeeded in securing the first general copyright protection, which set the precedent for other colonies to enact similar laws.

John Ledyard.
Credit…Ledyard National Bank, via NYT

Ledyard, as we learn from another Connecticut history site, was born a ship captain’s son in Groton, Connecticut in 1751. He joined the famous expedition with Captain James Cook on the HMS Resolution in 1776. He spent over four years at sea, but deserted the British Navy in 1783 and returned to Connecticut. He then wrote a memoir of Cook’s voyage largely from memory, although some of it was later found to have been plagiarized. This was ironic since it was Ledyard who petitioned the General Assembly for copyright protection, leading to a series of state laws that codified that right. The General Assembly, instead of passing a private bill for Ledyard, as had been the custom, issued the first general colonial copyright statute. It secured the rights to the author for 14 years with the ability to renew the copyright once.

During the 1780s, following the 1783 legislation of the first general copyright act in America by the Connecticut legislature,  all states but one passed similar statutes, modeled to various degrees after the English Statute of Anne.

[Per the History of Information website:

In 1709 British parliament enacted the Statuteof Anne: short title: Copyright Act 1709 8 Anne c.21; long title: An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned.  Named after Anne, Queen of Great Britain, this was the first copyright statute in Great Britain, and the first full-fledged copyright statute in the world. It was enacted in the regnal year 1709 to 1710, and entered into force on April 10, 1710.  

The Statute of Anne granted publishers of books legal protection for 14 years with the commencement of the statute. It also granted 21 years of protection for any book already in print. At the expiration of the first 14 year copyright term the copyright re-vested in its author, if he or she were still alive, for a further term of 14 years.]

The entrenchment of general authors’ rights in the US came with the 1789 constitutional clause that empowered Congress to ’promote the Progress of Science and useful Arts, by securing for limited Times to Authors […] the exclusive Right to their […] Writings’ (The Constitution of the United States of America, Art. 1, §8, cl. 8) and the 1790 federal Copyright Act (Copyright Act 1790, 1 Stat. 124, 1790).

January 23, 1915 – Birth of Potter Stewart, 94th Supreme Court Justice

Potter Stewart was born into a powerful Ohio Republican family on this day in history. He attended Yale for both undergraduate studies and law school, made law review, and graduated cum laude in 1941. He took a job at a law firm, but enlisted in the Navy when WWII began, acting as defense counsel in court-martial proceedings.

After the war, Stewart joined a prominent law firm in Cincinnati, and in 1954, President Eisenhower appointed Stewart to a seat on the Sixth Circuit Court of Appeals. In 1958, President Eisenhower named Stewart to a recess appointment to replace retiring Justice Harold H. Burton on the Supreme Court. This was Eisenhower’s third recess appointment, and despite criticism of the practice, Justice Stewart was confirmed by the Senate in a 70-17 vote on May 5, 1959.

US Supreme Court official portrait of Potter Stewart, 1976

Oyez reports that Justice Stewart believed in judicial restraint, seeing the proper function of a judge as interpreting the law as it applied to a particular case, rather than attempting to assert judicial influence over matters he saw best left to the legislature. This put Stewart in the ideological center of the Court, and he became an influential swing vote on many cases.

One of his more well-known opinions was in the obscenity case Jacobellis v. Ohio (378 U.S. 184, 1964). Justice Stewart famously said that while he could not readily define the term “hard-core” pornography, “I know it when I see it.”

Justice Stewart stepped down from the Court in July of 1981 at age 66. He said that his decision was influenced by his desire to spend more time with his grandchildren while he was still in good health. In 1985, he died from a stroke and was buried in Arlington National Cemetery. Upon his death, journalist Bob Woodward revealed that Justice Stewart was the primary source for The Brethren, the seminal book on the inner workings of the Supreme Court.

Rowena Scott Comegys, in her article, “Potter Stewart: An Analysis of His Views on the Press as Fourth Estate,” 59 Chi.-Kent L. Rev. 157 (1982), online here, contends that Justice Stewart’s support for freedom of the press stood out as part of his legacy, writing:

Stewart indicated in judicial opinions and extrajudicial commentary that he believed that the press deserves a special place among American institutions. [He believed] the Freedom of Press Clause was a structural provision of the first amendment, which the framers thought necessary in order to assure “openness and honesty in government. . . an adequate flow of information between the people and their representatives . . . [and] a sufficient check on autocracy and despotism. ‘ ‘ As he said in his speech at Yale in 1974, “If the Free Press guarantee meant no more than freedom of expression, it would be a constitutional redundancy.”

January 12, 1948 – SCOTUS Rules Qualified Black Students in Oklahoma to be Admitted into All-White State Law Schools in Sipuel v. Oklahoma State Board of Regents

Ada Lois Sipuel (later married to Warren Fisher), a Black woman, was born on February 8, 1924 in Chickasha, Oklahoma. She was an excellent student and was her high school valedictorian. She graduated from Langston University in Oklahoma with honors and hoped to become a lawyer. As a site by the Oklahoma Historical Society explains, Blacks were not allowed to attend white state universities such as the University of Oklahoma which had a law school. Instead, Oklahoma actually provided funding for Blacks to go outside the state of Oklahoma and attend law schools and graduate schools that accepted them.

At the urging of the National Association for the Advancement of Colored People (NAACP) twenty-one-year-old Fisher agreed to seek admission to the University of Oklahoma’s law school in order to challenge Oklahoma’s segregation laws and achieve her lifelong ambition of becoming a lawyer.

Ada Lois Sipuel Fisher

The president of the University of Oklahoma agreed that Fisher had the necessary credentials, but pointed out that Oklahoma statutes prohibited whites and Blacks from attending classes together. The laws also made it a misdemeanor to instruct or attend classes comprised of mixed races. Had they admitted Fisher, the president would have been fined up to fifty dollars a day, and the white students who attended class with her would have been fined up to twenty dollars a day.

On April 6, 1946, Fisher filed a lawsuit in the Cleveland County District Court, prompting a three-year legal battle. The future U.S. Supreme Court justice, Thurgood Marshall, represented Fisher. She lost her case in the county district court and appealed to the Oklahoma Supreme Court. It sustained the ruling of the lower court, finding that the state’s policy of segregating whites and Blacks in education did not violate the United States Constitution.

Fisher then filed an appeal with the U.S. Supreme Court. On January 12, 1948, the court ruled per curiam in Sipuel v. Board of Regents of the University of Oklahoma (332 U.S. 631) that Oklahoma must provide Fisher with the same opportunities for securing a legal education as it provided to other citizens of Oklahoma:

The State must provide it for her in conformity with the equal protection clause of the Fourteenth Amendment and provide it as soon as it does for applicants of any other group.”

According to Supreme Court Associate Justice John Paul Stevens, who sat in the gallery and watched Marshall argue the case before the court on January 8, 1948, Marshall was “respectful, forceful and persuasive – so persuasive that on the following Monday – only four days after the argument – the Court unanimously ruled in Sipuel’s favor.”

Fisher shown with lawyer Thurgood Marshall to her right

The case was remanded to the Cleveland County District Court to carry out the ruling.

Following the Supreme Court’s favorable ruling, the Oklahoma Legislature, rather than admit Fisher to the Oklahoma University law school or close the law school to students both Black and white, decided to create a separate law school exclusively for her to attend. As Melvin Hall writes for the Oklahoma Historical Society, the new school, named Langston University School of Law, was thrown together in five days and was set up in the State Capitol’s Senate rooms. It was not be any means “equal.”

On March 15, 1948, Fisher’s lawyers filed a motion in the Cleveland County District Court contending that Langston’s law school did not afford the advantages of a legal education to Blacks substantially equal to the education whites received at OU’s law school. The Cleveland court ruled against her, averring that the two state law schools were “equal.” The Oklahoma Supreme Court upheld the finding.

Fisher’s lawyers announced their intention to again appeal to the U.S. Supreme Court, and the Oklahoma attorney general knew it was a lost cause to argue equality in front of the same court.

As a result of this concession, on June 18, 1949, more than three years after Fisher first applied for admission to the University of Oklahoma College of Law, she was admitted. She enrolled on June 18, 1949, becoming the first African American woman to attend an all white law school in the South.

Ada Lois Sipuel Fisher

It was not a total experience in “equality”: Fisher was forced to sit in the back of the room behind a row of empty seats and a wooden railing with a sign designated “colored.” All of the Black students enrolled at the University of Oklahoma were provided separate eating facilities and restrooms, separate reading sections in the library, and roped-off stadium seats at the football games. These conditions persisted through 1950.

But as Hall contends, the end of segregation in higher education had already begun. In 1948 a group of six Black Oklahomans applied to University of Oklahoma’s graduate schools in disciplines ranging from zoology to social work. All were denied admission under the same statute that denied admission to Fisher. Thurgood Marshall selected one of the six students, George W. McLaurin, to present yet another challenge to segregation in higher education. On June 5, 1950, the U.S. Supreme Court ruled in the related cases McLaurin v. Oklahoma State Regents (339 U.S. 637) and Sweatt v. Painter et al. (339 U.S. 629) that the separate schools for Blacks were not entirely “equivalent” and that these differences violated the Fourteenth Amendment. (However, the Court declined from overruling Plessy v. Ferguson (163 U.S. 537), meaning that cases still had to be brought for individual plaintiffs who charged that schools for Blacks were unequal to their corresponding white schools.)

Meanwhile, in August, 1952 Fisher graduated from the University of Oklahoma College of Law. She earned a master’s degree in history from the University of Oklahoma in 1968. After briefly practicing law in Chickasha, Fisher joined the faculty of Langston University in 1957 and served as chair of the Department of Social Sciences. She retired in December 1987 as assistant vice president for academic affairs. In 1991 the University of Oklahoma awarded Fisher an honorary doctorate of humane letters.

On April 22, 1992, Gov. David Walters appointed Dr. Ada Lois Sipuel Fisher to the Board of Regents of the University of Oklahoma, the same school that had once refused to admit her to its College of Law. As the governor said during the ceremony, it was a “completed cycle.” The lady who was once rejected by the university was now a member of its governing board.

In April 1992, Gov. David Walters appointed Fisher to the OU Board of Regents – the very group that had once rejected her. Gov. Walters said during the ceremony it was a “completed cycle.” Via UO College of Law

Fisher died on October 18, 1995. In her honor the University of Oklahoma subsequently dedicated the Ada Lois Sipuel Fisher Garden on the Norman campus. At the bottom of a bronze plaque commemorating Fisher’s contribution to the state of Oklahoma, an inscription reads, “In Psalm 118, the psalmist speaks of how the stone that the builders once rejected becomes the cornerstone.”

December 16, 1950 – President Truman Declares National State of Emergency Over Communist Threat

On this day in history, President Harry Truman declared a national emergency over the perceived threat of communism he felt had just increased exponentially by the massive Chinese intervention in the Korean War.

The United Steel Workers of America threatened a strike at that very time, which would have imperiled steel production at a time when nearly all military weapons required steel.

Thus Truman also issued Executive Order 10340, which followed the national emergency declaration, so Truman could order the Secretary of Commerce to take possession of and operate plants and facilities of steel companies to ensure the manufacture of “the weapons and other materials needed by our armed forces and by those joined with us in the defense of the free world.”

President Truman signing a proclamation declaring a national emergency that initiated U.S. involvement in the Korean War

Proclaiming that “Communist imperialism” threatened the world’s people, Truman called upon the American people to help construct an “arsenal of freedom.”

Despite Truman’s argument that his position as commander-in-chief afforded him the power to make all military decisions, the Supreme Court ultimately ruled 6-3 in Youngstown Sheet & Tube Company v. Sawyer (343 US 579, 1952), that Truman lacked the constitutional authority to nationalize the steel industry. As summarized by Oyez:

The Court found that there was no congressional statute that authorized the President to take possession of private property. The Court also held that the President’s military power as Commander in Chief of the Armed Forces did not extend to labor disputes. The Court argued that ‘the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.’”

Review of “A New Birth of Freedom” by Charles L. Black, Jr. – Examination of Human Rights Via Declaration of Independence & 9th and 14th Amendments

Professor Charles Lund Black, Jr. (1915-2001), was one of the leading constitutional law scholars of the twentieth century. In this restatement of much of his life’s work, he attempted to put the jurisprudence of human rights on firm legal ground.

Black looked to three sources for human rights: the Declaration of Independence, the Ninth Amendment, and the “privileges and immunities” clause of the Fourteenth Amendment.

The Declaration declares “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

The Ninth Amendment provides that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Article 1 of the Fourteenth Amendment says “1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Black considered the Declaration of Independence to be not only a source of law, but “law” itself. Why not? After all, it is the founding document that “established” the United States.

But even if the Declaration is not considered “law,” the ninth and fourteenth amendments are most certainly law – national law, which Article VI of the Constitution, provides is the supreme law of the land, superior to anything enacted by any of the “several states.”

The ninth amendment, though rarely cited in Supreme Court opinions, as indicated above states that the failure of the constitution to enumerate certain “rights” shall “not be construed to deny or disparage others retained by the people.” But what are those unenumerated rights? Black proposed they should include those mentioned in the Declaration, which was adopted only thirteen years before the passage of the Ninth Amendment.

And because the Ninth Amendment applies only to the Federal Government, the Fourteenth Amendment is needed to protect citizens from the actions of the states, which, Black pointed out, are the principal abridgers of human rights.

Although the 14th Amendment has acted as a check on actions by the states to limit human rights, the jurisprudence surrounding it has been faulty. The federal courts have relied on the “due process” clause of the amendment to find various state actions unconstitutional. This is all well and good where the state action was an unfair procedure (process), but that clause’s language simply does not seem to cover an unfair or otherwise constitutionally inappropriate substantive provision.

Professor Charles L. Black

Black contended that reliance on the due process clause to invalidate overreaching by state governments has resulted in some poor decisions and fuzzy analysis. Instead, he pointed to the privileges and immunities clause, augmented by the 9th Amendment and a reference to the Declaration of Independence, as a better guide to the human right jurisprudence.

Black further argued that those three sources of human rights not only protect against state infringement, but also impose on Congress an affirmative constitutional duty to see that all citizens have a decent chance to “pursue happiness.” He said, “There is then nothing exotic to the Constitution in the proposition that a constitutional justice of livelihood should be recognized….” He wanted our national debate about the elimination of poverty to shift from a matter of compassion to one of a constitutional right. In his words, “The general diffusion of material welfare is an indispensable part in the general diffusion of the right to the pursuit of happiness.”

Black believed that “the pursuit of happiness” should be adopted as a fundamental right, created by the Declaration of Independence, incorporated in the Constitution and imposed on the federal government through the Ninth Amendment, and imposed on the states through the privileges and immunities clause of the Fourteenth Amendment. The simple insight of the right to pursue happiness would reach out to every field of human rights:

It would make plain the wrong in every kind of discrimination hurtful to women. It goes to the essence of the wrongs done by the law and outside the law to those having homosexual preferences. It could clarify the ultimate grounds of the banning of racial discrimination against blacks and other racial minorities.”

Moreover, we need not fear that such an extension of such rights would go “too far.” After all, the law effectively limits the right of free speech and religion. An analysis similar to that which prohibits yelling “fire” in a crowded theater (limiting speech) and prohibits ritual animal sacrifice (limiting religion) would keep pursuit of happiness jurisprudence within reasonable bounds.

Black dedicated the book to Abraham Lincoln, who also looked to the Declaration of Independence as a source of “law” when he referred to it in the Gettysburg Address. Black thought perspicaciously and wrote clearly; this exceptionally good book is highly recommended.

Published by Putnam, 1997

October 20, 1669 – Virginia Passes Law Exempting Slave Owners from Punishment for Killing Slaves “if Provoked”

Virginia led the way in legislation punishing slaves and also in removing punishments for whites who abused them in any way. Other colonies then followed Virginia’s example.

As the late civil rights advocate and federal court judge A. Leon Higginbotham Jr. wrote for the Washington Post:

With each succeeding decade, the Virginia legislators, expressing a mixture of fear, greed and prejudice, simply reduced the privileges and rights of blacks. They rationalized their actions on the ground of security, without religious or moral qualm whatsoever.”

In “Law and the Making of Slavery in Colonial Virginia” by Ashton Wesley Welch, Dept of History, Creighton University (online here) the author points out:

There was no legal declaration that Africans were to be slaves, but rather a series of cases, followed by legislation, that dealt with the practical problems arising from the custom of holding Africans as slaves. The effect of these laws and deci­sions was to make it increasingly difficult for Blacks to be any­ thing but slaves. The paths of escape from this condition were gradually narrowed until choked off nearly altogether.”

Landowners purchased slaves imported from Africa primarily in the 1600s – Source: Schomburg Center, New York Public Library, Negroes just landed from a Slave Ship

One of these laws, passed on this day in history, removed criminal penalties for enslavers who killed enslaved people resisting authority. The assembly justified the law on the grounds that “the obstinacy of many [enslaved people] cannot be suppressed by other than violent means.” The law provided that an enslaver’s killing of an enslaved person could not constitute murder because the “premeditated malice” element of murder could not be formed against one’s own property.

You can read the text of the statute here.

October 17, 1871 – President Ulysses Grant Declares Martial Law & Suspends Habeas Corpus Following KKK Violence Against Blacks in South Carolina

The Ku Klux Klan, formed in 1866 in Tennessee, spread quickly throughout the South. It was an organization of “night-riding white supremacists who terrorized Black families, and a good many white Republicans, as it sought to cripple the Republican party and its supporters, which included virtually all African-Americans.” (Ryan, Allan A., Amos Akerman: Grant’s Attorney General Who Broke the Back of the Ku Klux Klan (July 4, 2021). Available at SSRN here.

Lou Falkner Williams, in “The Great South Carolina Ku Klux Klan Trials, 1871-1872, an online dissertation for U. Of Florida, observed that “The Ku Klux Klan was the white solution to a Black population which refused to stay in its place and maintain a slavelike demeanor.”

As Eric Foner, a preeminent historian of Reconstruction, described the Klan, “It was a military force serving the interests of the Democratic party, the planter class, and all those who desired the restoration of white supremacy.” (Eric Foner, Reconstruction, America’s Unfinished Revolution, 1863-1877, pp,. 425-26)

“All those” of course consisted of white males.

During the presidential campaign of 1868, the KKK emerged as a “paramilitary wing” of the Democratic Party. Robert J. Kaczorowski, in “Federal Enforcement of Civil Rights During the First Reconstruction,” 23 Fordham Urb. L.J. 155 (1995), reports that the KKK “embarked on a campaign of terror for the purpose of destroying the Republican Party in the Southern states and reducing Southern Blacks to the control of white supremacists.” After Grant was elected to the presidency, terrorist acts by the KKK increased. Thus, Kaczorowski notes, “Congress created the Department of Justice in 1870 in large part for the purpose of providing more effective protection against Klan terrorism.”

In April, 1871, President Grant signed the Ku Klux Klan Act, which made it a federal crime to deprive American citizens of their civil rights through racial terrorism. He then sent US Attorney General Amos T. Akerman along with Army Major Lewis Merrill to South Carolina to investigate reports of violence against newly freed Blacks. According to the Equal Justice Initiative, in York County alone they found evidence of eleven murders and more than 600 whippings and other assaults.

Amos T. Akerman

Lou Falkner Williams wrote that “Akerman left South Carolina convinced that ‘from the beginning of the world until now,’ no community ‘nominally civilized, has been so fully under the domination of systematic and organized depravity.’” (p. 94). He concluded the KKK activities “amount(ed) to war,” and recommended to President Grant that he use the full extent of his powers to suppress the KKK in South Carolina.

On October 12, 1871, President Grant warned nine South Carolina counties with prevalent KKK activity that martial law would be declared if the Klan did not disperse. The warning was ignored. On October 17, 1871 – this day in history – President Grant declared martial law and suspended the writ of habeas corpus in the same nine counties. Once he did so, federal forces were allowed to arrest and imprison KKK members and instigators of racial terrorism without bringing them before a judge or into court.

Many affluent Klan members fled the jurisdiction to avoid arrest but by December 1871 approximately 600 Klansmen were in jail. More than 200 arrestees were indicted, fifty-three pleaded guilty, and five were convicted at trial. Klan terrorism in South Carolina decreased significantly after the arrests and trials but racial violence targeting Black people continued throughout the South for decades.

You can read President Grant’s proclamation suspending habeas corpus here.